R. v. LAI SAU KUEN

IN THE COURT OF APPEAL

1992, No. 228
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. This is an application for leave to appeal against conviction.

2. The applicant is a registered medical practitioner. Four counts were laid against her. She faced the first three on her own. They were of using an instrument with intent to procure miscarriage contrary to section 46 of the Offences Against the Person Ordinance, Cap. 212. The particulars were that she did that in her clinic in Kowloon each time: to a Madam So in October 1990 under the first count; to a Madam Ng in November 1990 under the second count; and to a Madam Chan also in November 1990 under the third count. The fourth count she faced together with a co-accused. It was of attempting to procure miscarriage. Again, the venue was her Kowloon clinic. The date was 28 February 1991. And the woman concerned was a woman police constable acting as an agent provocateur.

3. Both accused were acquitted on the fourth count upon direction from the Judge, Deputy Judge Sharwood, following their successful submissions of no case to answer.

4. Her submission of no case to answer on the first three counts having failed, the trial proceeded against the applicant alone on those counts.

5. In the result, the jury convicted her on the first count (by a majority of six to one), acquitted her on the second count (by a majority of six to one) and convicted her on the third count (by a majority of five to two).

6. What she seeks leave to appeal against are, therefore, her convictions on the first and third counts.

7. Each of the women concerned wanted a miscarriage. Madam Ng thought that she might have had one already.

8. In the words of Mr. Sarony Q.C.'s succinct and helpful skeleton argument:

"The applicant's case was that in each instance, the witness had already miscarried but that she allowed them to believe that she was terminating their pregnancies in order to collect the fee for so doing. This necessarily involved deceiving the patients."

9. As can be seen, the applicant's case at trial was unattractive. By her own admission, she had led the women to believe that she had used instruments to procure their miscarriage and the women had paid her on the basis that what she had represented to them was true. However, the question before the jury was not whether she was an honourable medical practitioner, but whether the evidence bearing upon the charges was such that the jury could safely convict. But, as Mr. Sarony cogently argues, since her defence was so lacking in real merit it was incumbent upon the judge to carefully sum up her case to the jury so that the proper consideration of the case should not be swamped by the applicant's own admission of deceit.

10. Count 1 concerns Madam So. She gave evidence to the effect that she was unmarried and in about October 1990 became pregnant. She wanted an abortion and went to the applicant's clinic in Mongkok. Her evidence-in-chief was unsatisfactory. When asked what conversation she had with the applicant she said "Nothing". The examination then continued:

"Q: What did you ask her?

A: I did not ask her anything.

Q: How? What happened?

A: I slept for one odd hour. I did not know what was happening during that period after I had been given an injection."

This was an important aspect of the case. The thrust of the prosecution case was this: The most likely way the abortion was performed was by dilatation and curettage (D&C), followed by suction to remove the foetus and debris. But the procedure of D&C was very painful and, in general terms, could not be done without considerable risk, except under general anaesthetics: otherwise the patient would struggle and the chance of perforating the uterus with the curette was considerable. Therefore if Madam So was unconscious - she said in-chief she was unconscious for one hour - this would have been consistent with the prosecution case.

11. But when cross-examined she accepted that she had told the police in May 1991 that she was aware of the doctor performing an operation on her and said in effect that that was what in May 1991 she thought had happened.

12. The judge in his summing up told the jury that what she said in her statement in May 1991 was "not evidence". It is now accepted by Mr. Bruce for the Crown that this was a misdirection, since she had in effect adopted that statement as her testimony in court. We will consider the significance of this misdirection (ground 7 of the perfected grounds of appeal) in the light of the other matters which Mr. Sarony says renders the convictions on both counts 1 and 3 unsafe and unsatisfactory.

Ground 6

13. We turn first of all to ground 6 of the grounds of appeal which is in these terms:

The judge failed to remind the jury that the evidence of the prosecution witness Dr. Yu Shun-yin was unequivocal that surgical abortion cannot be done properly unless the patient is administered a general anaesthetic. Moreover, whilst fairly drawing the jury's attention to the fact that the defence placed great emphasis on this expert evidence, the judge omitted to summarise the defence case properly in this regard as to identify and charge them with this issue.

14. Dr. Yu Shun-yin is a gynaecological consultant at the Princess Margaret Hospital. She said that if miscarriage was procured by the use of a dilator, to widen the opening of the cervix, followed by scraping of the uterus wall with a curette to remove the live foetus, this was a severely painful experience for the patient: drugs such as pethidine would lessen the pain but would not remove it. The operation would be completed by the use of a suction pump to remove the debris. None of the three women, Madam So in the first count, Madam Ng in the second count and Madam Chan in the third count, spoke of experiencing pain and none heard the sound of any machine. It was common ground that the suction machine would make a noise audible by everyone in the room.

15. It is worth emphasizing that Dr. Yu's evidence was to the effect that such operation, to procure a miscarriage, should not be done without a general anaesthetic - not that it could not be done. That matter was left unexplored: defence counsel chose not to probe that issue in cross-examination.

16. In the case of each of the three women, the unchallenged evidence was that an injection was given and this made them feel dizzy. Madam Chan said she was lying on the bed, her legs spread out, and felt the applicant touching her lower parts. Eventually, in her own words, "her baby was sucked out" and she was told to put on a sanitary napkin. She returned to the clinic a week later for follow-up treatment. Her menstruation returned to normal. Likewise, in relation to Madam Chan the judge reminded the jury that she heard no noise : the room was very quiet. The judge then said this: "However, I remind you that Dr. Yu Shun-yin said a suction machine made a noise that everyone can hear".

17. As regards Madam So (in the first count) - and these remarks apply equally to Madam Chan (in the third count) - the undoubted facts are these:

(i) She was pregnant at the material time.

(ii) She went to the applicant's clinic to have an abortion and made this clear to the applicant.

(iii) She was given an injection.

(iv) Some procedures involving her lower parts were performed.

(v) When she left the clinic she was no longer pregnant, and paid for services as if what was done was the procuring of a miscarriage by the use of instruments.

(vi) There was a follow-up visit and her menstrual cycle resumed.

18. As can therefore be seen, the issues at trial between the prosecution and the defence were very narrow.

19. The applicant's case was, in a nut-shell, this:

(1) The only drug she gave, by injection, was diazepam: a mild tranquillizer.

(2) When she came to examine each of the three women, she found the cervix open and signs that the foetus inside had "gone bad": there was some blood and dead tissues in the vagina.

(3) She used a speculum to widen the vagina, forceps to remove dead tissue and a curette to very lightly scrape away the dead foetus: in other words, what she did was simply to clean up.

This procedure involved very little pain and no pain killer such as pethidine was necessary.

(4) The procedure used on Madam So and Madam Chan was the same as that used on Madam Ng: in the case of Madam Ng she had given evidence to the effect that she thought she already had a miscarriage before arriving at the clinic and the doctor told her that the foetus had already gone bad. This, as counsel argues, is overwhelming proof that, as far as Madam Ng was concerned, the operation was as the defence avers, to clean up after a spontaneous abortion: in other words, not the use of instruments to procure an abortion. This, says counsel, is positive proof of the defence case on count 2, and this must cast doubt on the validity of the convictions on the other two counts.

20. The way the judge summed up the matter was as follows.

"Members of the jury, you saw and heard this witness (referring to Dr. Yu). You might have thought her very serious, very conscientious and very professional. Her view was that an abortion which involved scrapped with a curette should not be done except under general anaesthetic.

The defence relies very heavily on this evidence. The accused said that general anaesthetics were not administered to any of these women and that she did not have the drugs to do it. She said that she would not have performed an abortion without a general anaesthetic. Of course no drugs to administer general anaesthetic appeared to have been found when her clinic was raided on the 28th February, 1991."

21. In our judgment, the judge cannot be criticized for the way the issues were presented to the jury. He gave careful directions in relation to each of the counts - except that in relation to count 1 where there was the misdirection earlier mentioned, to which we will revert. We would not regard the passage quoted above, and impugned in ground 6 of the grounds of appeal, as a misdirection.

Ground 4

22. Ground 4 is in these terms:

"The judge erred in directing the jury that if they thought that the defendant had lied then her evidence should 'simply be ignored'".

23. Obviously, if the judge was directing the jury to disregard the whole of the applicant's evidence because they found she had lied in some particular respect, that would be a serious misdirection. We do not think that the judge's words can be taken in that sense. The judge had earlier given a general direction to the jury in these terms:

"It is for you to draw proper inferences from the evidence which you do accept. It is for you to believe witnesses or to disbelieve them. You may believe and rely upon some parts of a witness's evidence and disbelieve and not rely upon other parts."

24. Later when answering a question by the jury the judge said this:

"As I say, her defence is that she did fiddle around, that she did perform an operation, but her intention was merely to clean up, because according to her, there had already been miscarriages.

If you believe her, you find her not guilty, or if you think she might reasonably be telling the truth, you find her not guilty. But if you disbelieve her, you would ignore her evidence and consider whether the prosecution has proved its case so that you are sure."

25. In our judgment in these passages the judge could not possibly have been taken by the jury as inviting them to disregard the whole of her evidence.

Ground 9

26. This relates to the way the judge summed up the applicant's case generally to the jury as appearing on p.34-35 of the summing up which are in these terms:

"She explained further that scraping a uterus to clean a dead foetus would not normally cause very great pain, whereas the scraping of a foetus that is alive is very painful, because the foetus then adheres to the wall of the uterus. If the foetus is dead, it falls away and is ready to come out. She said that in all three cases, the foetus was dead, the cervix was open, a pain killer was not necessary, and she could see all this after examination. A tranquillizer was sufficient."

Then the judge went on

"Members of the jury, you saw and heard the accused for a full day in the witness box. It is for you to assess her credibility. In doing so, you may wish to consider, among other things, the following:- Do you think that she was willing to let it be known that she would perform abortions on request? Could these three women, for example, have recommended this clinic to their friends? Was the accused saying that she would first agree to perform an abortion, fix a fee, but the moment she found that a patient was pregnant, she would then urge the woman to have the baby, discuss it with her husband, or go to a hospital, and refund the abortion fee less examination charges?

Do you think that the accused was willing to become known as an abortionist, but not willing to perform illegal abortions? Was her system designed simply to make a profit by pretending to perform abortions on women who had miscarried but did not know it? All these are matters for you."

27. The complaint is that the judge in the latter part of this passage strayed into areas unexplored at trial. Mr. Sarony says this:

"The deception element in the Applicant's defence was most unattractive and it behoved the trial judge to treat with the evidence in such a way as to guide the jury away from drawing adverse inferences because of the Applicant's unmeritorious defence. However, the question posed to the jury at the top of page 35 was gravely prejudicial containing an implicit characterisation of notoriety on the part of the Applicant as an abortionist."

28. In our judgment, such adverse inference as might properly drawn from the evidence was brought by the applicant on her own head. She gave evidence to the effect that she would in fact only perform abortions in hospitals - and yet in regard to the three women she led them to believe that abortions were performed in her clinic in Mongkok.

29. Regarding Madam Ng this is what she said in her evidence in chief:

"Q. Did you tell madam Ng that she had had a miscarriage?

A. No, I did not tell her.

Q. Why not?

A. I had already agreed with her to the price. If I told her what had happened, she would believe that the operation was actually a very simple one and she would believe I had charged her too much money and she might ask me for the return of some money."

30. In relation to Madam Chan the following passage occurred in her evidence in chief:

"Q. Did you tell her that she had had a miscarriage?

A. I did not.

Q. Why not?

A. I had received her money.

Q. Why did you not tell her that she had had a miscarriage?

A. I had received her money. If I told her that she had had a miscarriage, in that case some patients might get up and leave, and so I could not have the transaction done."

31. In relation to Madam So, this is what she said:

"Q. Did you tell her that she had had a miscarriage?

A. No, I did not.

Q. Why not?

A. She had paid me.

Q. And?

A. So, I believed that there was no need for me to tell her too much.

Q. What did you think might happen if you had told her the truth?

A. Perhaps she might ask me to return to her the money and argue with me about the price."

32. At the end of the day, the issues for the jury were straight-forward and boiled down to this: Were they satisfied upon all the evidence that in respect of Madam So, Madam Ng and Madam Chan the applicant had used an instrument intending, not simply to explore and to clean up, but to procure a miscarriage? That issue was left fairly and squarely to the jury by the judge.

33. There were areas in the evidence unexplored. For example, no questions were put to Dr. Yu by defence counsel along these lines: Assuming drugs were injected into a patient of sufficient dosage to make her feel dizzy, but not to render her unconscious, could a miscarriage by the use of instruments have been performed? The state of the evidence remained neutral on this point, at the end of the day.

34. The jury would not have been unmindful of the way the defence case had been put to the women. For instance, in respect of Madam So, it was suggested in cross-examination that the applicant had told her that the foetus could not be saved: a suggestion which Madam So denied. In her own testimony the applicant said that when she examined Madam So she found black blood seeping out; and yet there was no suggestion that before going to the clinic Madam So had had a miscarriage, or that she thought she had had a miscarriage. And the position regarding Madam Chan was identical. So there was this extraordinary coincidence before the jury, that within about one month two women, in early stages of pregnancy, with no previous gynaecological problems, were found on examination by the applicant to have already miscarried.

35. In our judgment, the judge was not in error in putting the case generally as he did on pages 34-35.

Ground 7

36. We now return to the misdirection in ground 7 of the perfected grounds of appeal. In essence, the question was whether Madam So had been rendered unconscious or whether she was aware of what was going on after she had been given an injection. Having regard to the overall evidence and the narrowness of the issues at trial, we do not regard the misdirection in ground 7 as material.

37. Had the evidence been to the effect that no abortion could have been performed except by the doctor putting the patient under general anaesthetic, then the variance in Madam So's evidence might well have been critical. But even on the applicant's own case, the removal of a dead foetus could be very painful. She said this at the conclusion of her testimony:

"Q. In the case of the foetus being already dead, would scraping the uterus cause any pain to the patient?

A. Not very great pain usually if the foetus is dead."

38. So on her own evidence, the procedure, possibly painful, was performed with nothing more given to the patient than a mild tranquilliser. In these circumstances, we do not regard the misdirection in ground 7 as material to the verdict.

39. We wish in conclusion to acknowledge our thanks to Mr. Sarony for the careful and concise way he presented the case for the applicant. This has not been an easy appeal and, in the course of argument yesterday, the minds of the court have wavered considerably. In the end, in our judgment the proper result is that whilst leave to appeal should be granted, having heard full arguments we should treat the hearing as the hearing of the appeal and dismiss the appeal.